SINGAPORE — Law and Home Affairs Minister K Shanmugam on Tuesday (May 7) chided some critics for their limited understanding of the proposed fake news laws, dedicating a significant portion of his speech in Parliament to rebutting criticisms of the draft laws.

Chief among these was a “chilling effect on free speech” that the proposed laws would have, which Mr Shanmugam called “one of the most overused phrases”.

Deliberate online falsehoods are a “real and serious” problem that needs to be dealt with, said the minister, who pointed out that free speech should not be affected by the Bill.

Following the tabling of the Bill in Parliament on April 1, academics and journalists based here and overseas have written articles and commentaries criticising the proposed laws and started petitions against it.

Among their concerns and criticisms were:

• The Bill gives too much power to the Government

• It will be challenging to appeal against a minister’s order

• A lack of clarity on what constitutes a fact or an opinion

• The wide definition of “public interest”

• If enacted, the laws will create a chilling effect on free speech

Responding to the view that the draft laws grant the Government too much power, Mr Shanmugam referred to an interview given by one of the academics who had signed and submitted a letter to Education Minister Ong Ye Kung. Some 120 academics had voiced their concerns that the fake news laws could lead to self-censorship and affect their work.

While he did not name the academic, Mr Shanmugam said that the former — National University of Singapore’s (NUS) political scientist, Associate Professor Chong Ja Ian — had made “several completely erroneous statements”.

Assoc Prof Chong had said in a recent interview with Civicus, a South Africa-based non-governmental organisation championing civil society activism, that any minister can define a statement as false because public interest is affected.

But Mr Shanmugam said the academic had conflated falsehood and public interest.

For a minister to act, there must first be a false statement of fact and the minister must subsequently assess whether the statement acts against public interest, he reiterated.

“If a Singaporean academic can be mistaken on such basic points, then it is understandable the foreign academics could have signed without an understanding or appreciation of the true position,” said Mr Shanmugam.

Mr Ong is expected to respond to the academics’ concerns in Parliament on Wednesday.

In his speech lasting over two hours, Mr Shanmugam also repeated his arguments made in a recent commentary countering the proposals raised by three Nominated Members of Parliament (NMPs) who had filed a Notice of Amendment on the issue. The trio were: Ms Anthea Ong, Ms Irene Quay and Associate Professor Walter Theseira.

Among others, the NMPs proposed that the legislation specify the reasons why a statement is determined as false and what constitutes public interest.

On the falsity of a statement, Mr Shanmugam said that this will be set out in a subsidiary legislation, requiring the Government to set out the reasons.

But he expressed discomfort in setting out detailed reasons on how a particular cause of action serves public interest as the level of details depends on each case.

“It’s difficult for parliament today to envisage what are the types of cases. How are you even going to start setting out what level of detail ought to be set out. You don’t even know what the case is about,” added Mr Shanmugam.

The NMPs had proposed that an independent council be set up to monitor online falsehoods and provide routine oversight on the use of executive powers under the legislation.

While he said he understood the intent, Mr Shanmugam questioned if such a council could lead to “unnecessary bureaucratic bloat”.

When it comes to accountability, the ministers are responsible to MPs in Parliament and every time there is an exercise of power, they can pose questions for clarity.

In addition, there is also accountability to the courts, said Mr Shanmugam.

“Anytime there is a question, (it) can be challenged in court, can be challenged in Parliament. You keep getting it wrong, the electorate will have something to say about it.”

ADDRESSING THE CRITICISMS

CRITICISM 1: BILL GIVES TOO MUCH POWER TO GOVERNMENT

The Government’s powers under existing legislation are wider than those in the proposed fake news laws, said Mr Shanmugam. This is a point that his ministry previously sought to clarify.

He pointed to laws such as the Broadcasting Act, Telecommunications Act and Films Act, among others, which arm the Government with powers to take down any material that is objectionable on grounds of public interest.

These laws also allow the Government to order that a clarification be carried, as well as restrict the financing and block “offending websites”.

In contrast, the fake news Bill applies only to factual falsehoods which are established to be against public interest, said the minister. The Bill also provides greater judicial oversight as individuals can appeal against a minister’s order.

“If a minister is wrong, he gets overruled,” he said.

CRITICISM 2: LACK OF CLARITY ON WHAT IS A FACT OR OPINION

There have been calls for the Government to define what constitutes a fact and state explicitly that opinion is not covered under the proposed fake news laws.

While the Government has considered these carefully, Mr Shanmugam said it decided against doing so.

Instead, it is better to rely on the existing body of case law setting out what constitutes a fact and an opinion, he said.

“When there is a dispute, the matter can be dealt with in Court. How else do you decide?”

Mr Shanmugam said that the Government intends to set out in a subsidiary legislation that reasons must be given on why a statement is said to be false.

CRITICISM 3: NEW LAWS WOULD CREATE CHILLING EFFECT

“Free speech should not be affected by this Bill,” said Mr Shanmugam.

“We are talking here about falsehoods, we’re talking about bots, we’re talking about trolls, we’re talking about fake accounts and so on.”

He referred to evidence given by NUS law professor Thio Li-ann to the Select Committee on Deliberate Online Falsehoods, where she pointed out that not all forms of speech are worthy of equal protection.

Prof Thio also noted that the law does not protect speech that defames an individual’s reputation, denigrates a judge in a contemptuous fashion, or incites ethnic or religious violence.

CRITICISM 4: WIDE DEFINITION OF PUBLIC INTEREST

Some critics noted that the definition of public interest was too wide and should not include the aspect which relates to the diminution of public confidence in the functions of government institutions.

But Mr Shanmugam reiterated that the Bill does not cover statements just because they are against public interest as they must first be false statements of fact.

Online falsehoods seek to break down trust by attacking institutions and it is important to protect them, he added.

CRITICISM 5: CHALLENGING TO APPEAL MINISTER’S ORDER

Mr Shanmugam said the appeal process has been simplified.

Costs will be kept low and no court fees will be imposed for the first three days of hearing for individuals who appeal to the courts.

Cases will be heard as early as nine days after the application date.

Even so, Mr Shanmugam said that the court has a “general discretion to extend timelines where there is a good reason to do so”. The court will also have the power to waive the fees.